TaxTMI 
TaxTMI 
2012 (12) TMI 70
X X X X Extracts X X X X
X X X X Extracts X X X X
....g jurisdiction under Section 263 of the Income Tax Act. 2. Briefly, the facts are that the respondent assessee, in its return for assessment year 2004-05, declared loss of Rs. 234,75,55,861/-; the assessed loss was Rs. 229,92,11,019/- under Section 143 (3) of the Act. The Assessing Officer had allowed a claim for Rs. 35,81,30,408 on account of regulatory fee and Rs. 34,92,168/- towards stamp duty, by the assessment order dated 22.12.2006. The Commissioner of Income Tax sought to exercise his jurisdiction under Section 263 of the Act and issued notice on 10.02.2009, stating that the license fee was, in fact, capital expenditure. The CIT also formed the opinion that loan arrangement charges and stamp duty under the bank guarantee were capita....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dated 24.03.2009 that in fact the decision of the Tribunal in Comsat Max Ltd. Vs. DCIT, ITA 728-701/Del/2005, had also been brought to the notice of the Commissioner. That ruling had considered the question of payment of one time regulatory fee which was held to be revenue expenditure under Section 37 of the Act. Learned counsel emphasized that once this Tribunal ruling as well as the ruling of the another Delhi Bench of the Tribunal in MTNL Vs. CIT (100 TTJ 1) decided on 25th June, 2007 existed and was available, the CIT ought to have dropped the proceedings. 5. Learned counsel next relied on the judgment of the Supreme Court in Malabar Industrial Co Ltd. Vs. Commissioner of Income Tax (2000) 243 ITR 83 (SC) = (2002-TIOL-491-SC-IT), where....
X X X X Extracts X X X X
X X X X Extracts X X X X
....late Commissioner while invoking jurisdiction under Section 263 was of the opinion that the Assessing Officer's order was erroneous and prejudicial to the revenue. 8. It would be apparent from the above narrative that the assessment original framed on 22.12.2006 was after a full enquiry into the nature and effect of the one-time regulatory fee. This fee had to be paid because of a change in the Telecom policy. The Revenue's contention is that the lack of any discussion in Assessing Officer's order is an obvious error, justifying invocation of the power and jurisdiction under Section 263. This clearly amounted to lapse on the part of the Assessing Officer authorizing the Commissioner to re-open /exercise his revisional power. 9. Section 26....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Co. Ltd. (supra). 10. This Court is conscious that an earlier bench of this Court in CIT Vs. Sunbeam Auto Ltd., (2011) 332 ITR 167, had held that if there is some enquiry by the A.O. in the original proceedings even if inadequate that cannot clothe the Commissioner with jurisdiction under Section 263 merely because he can form another opinion. It was emphasized here that the notice and questionnaire given to the assessee which were duly replied, were evidence of full and due enquiry about this expenditure. After satisfying himself that they were in fact revenue expenditure, the assessee„s claim was upheld under Section 37. The Court in Sunbeam Auto (supra) held as follows : "Learned counsel for the assessee is ri....